Saturday, October 1, 2016

NON-DISCRIMINATION AND EQUALITY BETWEEN WOMEN AND MEN 1/2

Non-discrimination and equality between women and men are central
principles of human rights law. Both the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights prohibit discrimination on the basis of sex and guarantee women and
men equality in the enjoyment of the rights covered by the Covenants. Article
26 of the International Covenant on Civil and Political Rights also provides for
equality before the law and equal protection of the law.
The definition of discrimination in the Convention on the Elimination of All
Forms of Discrimination against Women encompasses a variety of possible
discriminatory actions (any distinction, exclusion or restriction) having
either the express purpose or the actual effect of discriminating against
women. The Convention goes further than other human rights treaties in
also describing in detail the State obligations and actions to be taken to
achieve gender equality in practice. It not only requires equality between
women and men, but also prohibits practices that can perpetuate women’s
inequality. Substantive gender equality and formal gender equality, as
well as de facto discrimination and de jure discrimination, are central
concepts in the Convention’s equality framework.

Discrimination and inequality can occur in different ways. Discrimination
can occur through de jure or direct discriminatory provisions, such as when
a law or policy restricts, prefers or distinguishes between certain groups,
for instance, prohibiting women from driving, owning land or inheriting
property. Ensuring formal equality requires eliminating all instances of de
jure discrimination. While much progress has been made to eliminate
discriminatory laws, many persist and reforming them should be a matter of
the utmost priority for States to comply with their human rights obligations.

Laws, policies or programmes can also have detrimental effects on
women even though they appear to be gender-neutral. This is known as
de facto discrimination. For instance, aid programmes which distribute
benefits to the “head of household” may not benefit women equally
since men are often considered the head of a household. Similarly, given
women’s disproportionate representation among those living in poverty, a
government lending scheme to buy land may be inaccessible to women
due to its cost—even if the scheme is open to both men and women.

Achieving substantive equality requires taking both historical inequalities
and the present conditions of women in a certain context into account.
Substantive equality may consequently require positive action by the
State to address the specific disadvantages and needs of women.16 The
Convention on the Elimination of All Forms of Discrimination against
Women encompasses substantive equality, recognizing that genderneutral
laws can have discriminatory effects and that formal equality is not
enough to address them. Its article 4 on temporary special measures, the
Committee’s general comment No. 25 (2004) on the same topic, as well
as article 5 on modifying the social and cultural patterns of conduct of men
and women, emphasize a commitment to substantive equality.